实质课税原则的理论阐释

Theoretical interpretation of substantive taxation principle

无论税制设计如何完善、税法规则如何复杂,偷逃税、避税、税收筹划始终是税法运行实践中无法消除的事实,也是各国税务机关不得不面对的问题。税收征收究竟是以形式还是以实质为标准,始终是税法领域存在争议的话题。实质课税原则在大陆法系和英美法系的起源和发展有着十分相似的路径。在大陆法系国家,无论是肇始于德国的经济观察法,还是经日本学者升级后的实质课税原则,二者在税收立法中的确立最初都是源于反避税的需求,都是为了保障国家财政收入而对当时税法进行修改的结果。从实质课税原则在英美法系的演进过程来看,实质课税原则经历了被否认到被允许的过程。由于英美法系以判例法为主,实质课税原则主要通过法院的判决被确立,这与大陆法系通过税收立法确定实质课税原则存在明显的区别。从实质课税原则的产生背景来看,反避税是实质课税原则在两大法系税收立法或税收司法实践中产生或确立的直接动机或最初原因。法律实质主义和经济实质主义在税法中分别适用于不同的场合,法律实质主义应当运用于“法律关系”的形式与实质不一致的情形,而经济实质主义应当运用于法律形式与经济实质不一致的情形。只有将法律实质主义和经济实质主义结合起来,才能应对纷繁复杂的各类税收问题,使税收的经济性与法律的权威性相契合。尽管实质课税原则在两大法系中有着不同的称谓,理论和实务界对实质课税原则的内涵和功能定位存在诸多分歧,但从实质课税原则的诸多争论中可以发现,实质课税原则并没有被全盘否定,而是实现税法上税收公平原则和量能课税原则的技术性、手段性原则,是对税收法定原则的重要补充,其目的是要求纳税人按其实质的税负能力来纳税,最终实现税负的公平分配。需要注意的是,实质课税原则适用于税法运行的各个环节,但并非适用于税法运行各环节的全部领域。

No matter how perfect the tax system design is and how complicated the tax law rules are,tax evasion,tax avoidance,and tax planning are always facts that cannot be eliminated in the practice of tax law,and are also problems that the tax authorities of various countries have to face.Whether tax collection is based on form or substance has always been a controversial topic in the field of tax law.The origin and development of the principle of substantial taxation have a very similar path in continental legal system and Anglo-American legal system.In continental legal system countries,whether it is the economic observation method originated in Germany or the principle of substantive taxation principle upgraded by Japanese scholars,the establishment of the two in tax legislation was both originally derived from the need for anti-tax avoidance,both the result of the revision of tax law at that time to ensure national fiscal revenue.Judging from the evolution of the principle of substantive taxation in the Anglo-American legal system,the principle of substantive taxation has gone through the process of being denied to being allowed.Since the Anglo-American legal system is mainly based on case law,the substantive taxation principle is mainly established through the judgment of the court,which is obviously different from the continental legal system to determine the substantive taxation principle through tax legislation.From the background,anti-avoidance is the direct motivation or initial reason for the emergence or establishment of the substantive taxation principle in the tax legislation or tax judicial practice of the two legal systems.Legal substantialism and economic substantialism are applicable to different occasions in tax law.Legal substantialism should be applied in cases where the form and substance of“legal relationship”are inconsistent,while economic substantialism should be applied in cases where the legal form and the economic substance are inconsistent.Only by combining legal substantialism with economic substantialism,can we deal with various complicated tax issues and make the economy of tax coincide with the authority of law.Although the substantive taxation principle has different appellations in the two legal systems,and there are many differences between the theoretical and practical circles on the connotation and functional positioning of the substantive taxation principle,it can be found from many debates on the substantive taxation principle that the substantive taxation principle has not been completely denied,but is a technical and instrumental principle to realize the principle of tax fairness and the principle of capacity based taxation in the tax law,and an important supplement to the principle of taxation legality.Its purpose is to require taxpayers to pay taxes according to their substantial tax bearing capacity,and finally realize the fair distribution of tax burden.It should be noted that the principle of substantive taxation applies to all links of the operation of tax law,but not to all fields of all links of the operation of tax law.